The following terms and conditions for delivery and payment shall govern all deliveries and services. Any conflicting purchasing terms and conditions of the Customer are hereby expressly rejected. Any such purchasing/leasing terms and conditions shall apply only if we expressly confirm them in writing. Acceptance of the delivered goods shall be deemed acknowledgement of our terms and conditions.
1. Prices/Terms and Conditions of Payment
1.1 We calculate the applicable prices on the date of delivery, such prices being in U.S DOLLAR (USD “$”) unless otherwise stipulated, plus an additional amount for VAT as applicable from time to time. Unless special terms are agreed, the prices should be understood to be prices ex works, with no deduction or discount being granted for immediate payment.
1.2 If payment deadlines are not met, this will automatically give rise to all of the statutory consequences of default, without any special reminder being required. In particular, we reserve the right to charge interest at the applicable rate charged by our bank if such interest exceeds the interest rate prescribed by statute (6% above the reference interest rate). Furthermore, the entire balance shall become due and payable immediately, irrespective of any payment targets.
1.3 In the case of custom-made products, we reserve the right to increase the price by a reasonable amount and to deviate to a reasonable extent from the agreed quantity. The Customer must take delivery of surplus quantities.
2. Delivery Dates
We will endeavor to adhere to stipulated delivery deadlines. However, due to complicated logistic matters and/or supply process, delivery deadlines will not be binding unless expressly agreed otherwise. Our contractual obligations are subject to our supplier delivering the correct products to us on time.
3. Place of Performance and Passing of Risk
3.1 The place of performance for the delivery is the principal place of business of our respective supplying factory. The place of performance for payment is our principal place of business.
3.2 When goods are transported, the risk (of accidental loss, destruction or deterioration) (the “Risk”) shall pass to the Customer as soon as we have delivered the goods to the carrier chosen by us.
Unless otherwise agreed, we will accept the return of packaging to the extent that we are obliged to do so under the legitimate agreement and guidelines that both party agrees to.
5. Warranties in Respect of Material Defects and Notification of Defects
5.1 If, despite the greatest of care being taken, the goods give rise to complaints, obvious defects must be notified without delay, in any case no later than 14 days after receipt of the goods, and hidden defects must be notified without delay after their discovery, otherwise the goods shall be deemed accepted.
5.2 Claims on the basis of defects as to quality (“material defects”) shall become statute-barred 12 months after delivery of our goods to our Customer. The foregoing provisions shall not apply to the extent that longer limitation periods are prescribed. Our consent must be obtained before any goods are returned.
5.3 If, despite all care being taken at our premises, the delivered goods contain a defect that already existed at the time that the Risk passed, then we will, at our election and subject to receiving notification of the defect within the required time, repair the goods or deliver substitute goods. We must always be given the opportunity to render subsequent performance within a reasonable time.
5.4 If subsequent performance cannot be rendered, the Customer may – notwithstanding any claims for compensatory damages – rescind the agreement or reduce the contractual fee. The Customer may not demand compensation for expenses incurred in vain.
5.5 The following shall not give rise to any claims based on defects: merely immaterial deviations from the agreed condition of the goods, merely immaterial impairments to their utility, natural wear and tear, or loss or damage that arises after the Risk has passed as a result of incorrect or careless treatment, overuse, unsuitable operating resources, defective building work, unsuitable building foundations or special external influences that are not requirements under the contract. In addition, if the Customer or a third party improperly (in a non-workmanlike manner) carries out maintenance work or modifications, then no claims based on defects may be made in respect of such work or modifications or the resulting consequences.
5.6 Claims on the part of the Customer for expenses necessary to enable subsequent performance, particularly transport, infrastructure (e.g., tolls) and labor costs and the cost of materials, are excluded to the extent that such expenses are higher because the goods delivered by us were subsequently taken to a location other than the Customer’s business premises, unless such transportation is consistent with the authorized use of the goods.
5.7 Claims based on material defects on the part of the Customer against us or our vicarious agents that go beyond or are not included in the claims governed by Item 5 are excluded.
5.8 The provisions of Item 7 shall otherwise apply to any other claims on the part of the Customer for compensatory damages or the reimbursement of costs.
6. Other Claims for Compensatory Damages
6.1 In the event of a breach of a per-contractual, contractual and/or non-contractual obligation, including unsatisfactory delivery and manufacturer’s liability, we shall be liable for compensatory damages and the reimbursement of costs – subject to further contractual or statutory liability requirements – only in the case of wilful conduct, gross negligence or breach of a material contractual duty (“condition”) (contractual duty, the infringement of which jeopardizes the ultimate purpose of the contract) where such breach was due to ordinary negligence. However, except in the case of wilful conduct, our liability shall be limited to typical contractual loss or damage that was foreseeable at the time the contract was entered into. The Customer is not permitted to make a claim for expenses incurred in vain.
6.2 For loss or damage caused by delay due to ordinary negligence, we shall be liable for up to 5% of the purchase price agreed with us.
6.3 Except in the case of breach of a condition, liability for ordinary negligence is excluded. This shall not affect Item 6.2.
6.4 The exclusions and limitations of liability set forth under Items 6.1 to 6.3 shall not apply in the event that a warranty is given with respect to the condition of the goods.
7. Non-binding Nature of Drawings, Diagrams, Measurements and Weights
Drawings, diagrams, measurements and weights are approximate only, unless they are expressly stipulated to be binding. The Customer must guarantee that working drawings (construction diagrams) supplied by it do not infringe the Proprietary Rights of third parties. The Customer must hold us harmless in the event that rights of recourse are asserted.
Documents supplied by us may not be copied or made available to third parties, or used for any purpose other than the agreed purpose.
9. Reservation of Title
9.1 We shall retain title to the goods until all of our claims, including claims arising in the future, are fully paid. The Customer may process and sell the goods in accordance with the following conditions:
If the goods are further processed or remodeled by the Customer, then we shall be deemed the manufacturer and shall acquire title to the intermediate or final products. The processor shall be merely the custodian.
If the goods subject to the reservation of title (“reserved goods”) are mixed or processed with other property not belonging to us, then we shall acquire a co-ownership interest in the new item proportionate to the value of the reserved goods to the other property.
9.2 The goods may be sold only in the normal and ordinary course of business and only if claims deriving from their resale are not assigned to third parties beforehand. The Customer’s claims deriving from resale of the goods shall, upon execution of the purchase agreement between us and the Customer, be deemed assigned to us to the extent that our goods are mixed or inter-processed with other property. In such a case, the assigned claims shall serve as our security only up to the value of the reserved goods sold in each case. We will not collect on the assigned claims for as long as the Customer complies with its payment obligations. However, the Customer has an obligation to disclose to us the identity of the third party debtor at our request and to notify such debtor of the assignment. The Customer may collect on the claims itself unless and until it receives instructions (to the contrary) from us. The Customer must immediately transfer the amounts collected by it to the extent that our claims are due.
9.3 Pledges or the granting of security interests in the reserved goods or the assigned claims are not permitted. The Customer must inform us immediately of any action by third parties affecting the goods delivered subject to a reservation of title or the assigned claims. We agree to release the assigned claims at our election if they exceed the value of our claims to be secured by more than 20% and are derived from fully paid goods.
9.4 In the event of breach of duty by the Customer, particularly in the case of default on payment, we are entitled to rescind the agreement and recover the goods. The Customer has an obligation to deliver up the goods. It is not necessary for us to rescind the agreement in order to recover the goods or enforce a reservation of title. Such actions or any pledge of the reserved goods by us shall not constitute rescission of the agreement unless expressly declared by us.
9.5 If, in the case of non-domestic sales, the reservation of title agreed under Item 9 is not permitted, then we shall retain title to the goods until payment of all of our claims arising out of the contractual relationship formed through the sale of the goods. If the foregoing reservation of title is not permitted with the same effect, but it is permissible to reserve other rights in respect of the goods, then we are authorized to exercise all of these rights. The Customer shall cooperate in all actions we may wish to take in order to protect our ownership interest or alternative right in the goods.
10. Sample / Customization of the product
10.1 For samples or customization order for specific needs and/or specific client, we apply “No Return, No Refund” policy.
11. Applicable Law and Judicial Forum
11.1 With the exception of choice of law rules under U.S private international law and the provisions of the UN Convention on Contracts for the International Sale of Goods (“UN-CISG”), the substantive law of the U.S shall apply to all legal relationships and transactions established by this purchase agreement.
11.2 The judicial forum for both parties, including for bill of exchange matters, is our principal place of business (registered office). If we become the plaintiff in litigation, then we are also entitled to bring an action in the jurisdiction of the Customer’s principal place of business (registered office).